Citation NR: 9738253
Decision Date: 11/17/97 Archive Date: 12/02/97
DOCKET NO. 96-22 587 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for post traumatic
stress disorder (PTSD).
2. Entitlement to service connection for major depression.
3. Entitlement to compensation pursuant to 38 U.S.C.A.
§ 1151 for complications following surgery to the right knee.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael F. Bradican, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1967 to
December 1969.
This case arises before the Board of Veterans’ Appeals
(Board) on appeal from rating decisions of February and April
1995, from the St. Petersburg, Florida, Regional Office (RO)
of the Department of Veterans Affairs (VA). The issue of
entitlement to compensation pursuant to 38 U.S.C.A. § 1151 is
addressed in the Remand portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has PTSD as a result of his
experiences in Vietnam. He claims to have been assigned as a
top secret radio operator, and describes his stressor as
having heard people screaming in the radio. He also contends
that his major depression is related to his service, and that
he contracted Hepatitis C during an operation on his right
knee in 1984. He contends he is entitled to benefits under
38 U.S.C.A. § 1151 for Hepatitis C, and for residuals of this
operation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that his claims for service
connection for PTSD and major depression must be dismissed
due to lack of jurisdiction.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran’s claim has been developed.
2. A February 1995 rating decision denied service connection
for PTSD and major depression. The RO mailed the veteran
notification on March 8, 1995.
3. In November 1995 the veteran submitted a notice of
disagreement to the February 1995 rating decision. On
December 4, 1995, the RO mailed a statement of the case to
the veteran.
4. On March 29, 1996, the veteran by telephone requested a
60 day extension of time in which to appeal the February 1995
rating decision. He submitted a substantive appeal (VA Form
9) on April 12, 1996.
CONCLUSION OF LAW
The veteran did not file a timely substantive appeal to the
rating decision of February 1995. 38 U.S.C.A. §§ 7105, 7108
(West 1991 & Supp. 1996); 38 C.F.R. §§ 20.202, 20.302, 20.303
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The pertinent procedural history of this case may be briefly
summarized. In February 1995, a rating decision denied
service connection for PTSD and major depression. The
veteran was duly notified of this decision on March 8, 1995.
In November 1995 the veteran submitted a notice of
disagreement to the February rating decision. A statement of
the case was provided to him on December 4, 1995. On March
29, 1996, the veteran contacted the RO by telephone and
requested a 60 day extension in which to file an appeal of
the February 1995 rating decision. The RO granted this
request. The veteran submitted his substantive appeal on
April 12, 1996.
An appeal consists of a timely notice of disagreement in
writing and, after a statement of the case has been
furnished, a timely substantive appeal. 38 U.S.C.A. §
7105(d)(3) (West 1991 & Supp. 1996); 38 C.F.R. § 20.202
(1996).
In this case the veteran was furnished a statement of the
case and he had the remainder of the one year period
following the date of mailing of notification of the February
rating decision to appeal the issues in that decision. 38
C.F.R. §§ 20.202, 20.302. A substantive appeal must be filed
within 60 days from the date the agency of original
jurisdiction (RO) mails the statement of the case to the
appellant, or within the remainder of the one-year period
from the date of mailing of the notification of the
determination being appealed, whichever period ends later.
38 C.F.R. § 20.302.
Although the veteran requested, and was granted, a 60 day
extension by the RO, this does not affect the question of the
Board’s jurisdiction over this claim. The time in which he
may have filed an appeal to the February rating decision
expired prior to his request for an extension. 38 C.F.R.
§ 20.303 expressly provides that “A request for such an
extension must be in writing and must be made prior to the
expiration of the time limit for filing the Substantive
Appeal...”. There is no provision for a retroactive
extension of time to file an appeal; therefore, an extension
cannot be granted and the RO’s purported extension is of no
effect.
If there is a failure to comply with the law or regulations,
it is incumbent upon the Board to reject the application for
review on appeal. 38 U.S.C.A. §§ 7105, 7107 (West 1991 &
Supp. 1995). Rowell v. Principi, 4 Vet.App. 9 (1993); Roy v.
Brown, 5 Vet.App. 554 (1993). Jurisdiction does indeed
matter and is not "harmless" when the VA during the claims
adjudication process fails to consider threshold
jurisdictional issues. Moreover, matters of jurisdiction can
be raised at any time. In this case, it is clear that the
veteran did not file a timely substantive appeal or request
an extension. These claims are not properly before the Board
on appeal and are dismissed.
ORDER
The veteran did not timely appeal the February 1995 rating
action denying service connection for PTSD and major
depression and the appeal as to these issues is dismissed.
REMAND
As to the claim for compensation pursuant to 38 U.S.C.A.
§ 1151, the veteran entered a notice of disagreement with the
rating decisions of April 1995, and a statement of the case
was issued in December 1995. On March 29, 1996 the veteran
requested a 60 day extension to file his appeal. The RO
granted his request. In April 1996 the veteran submitted VAF
1-9 to appeal the February and April 1995 rating decisions.
In this correspondence the veteran requested a hearing before
the Board. He was granted a hearing before a local hearing
officer at the RO. There is no indication the he withdrew
his initial request for a hearing before the Board at the RO.
Therefore this claim is REMANDED to the RO for the following:
The RO should contact the veteran and
ascertain whether he still desires a
hearing before the Board. If he so
desires he should be scheduled for the
next available travel board hearing.
Upon completion of the above listed item, this claim should
be returned to the Board for further appellate consideration.
The purpose of this remand is to ensure due process of law.
The veteran need take no action until so advised.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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